Noe v. . Christie , 51 N.Y. 270 ( 1873 )

The referee to whom the issues in the action were referred for trial has found, as facts, that the money in question was collected by the defendants on the employment of the plaintiff, and under an agreement to account with him therefor; that no specific sum was agreed to be paid for their services, and that $225 was a fair and adequate compensation therefor; that payments to a certain sum had been made to the plaintiff, on account, leaving a balance due and unpaid, and that there was never an accord and satisfaction between the parties whereby the said balance was paid or satisfied. These findings having been affirmed by the General Term on sufficient evidence are conclusive on us, unless it shall appear that the referee adopted an erroneous principle or rule of law in reaching that conclusion.

It is shown by one of his findings of fact that the plaintiff, after the collection of the money by the defendants, gave William S. Bliss an order on them to pay him $600 and charge the same to the plaintiffs account, and they claim that they were entitled to a credit for that sum. There is nothing to warrant that claim. The order was not negotiable; it was a mere direction to pay Bliss the money specified therein, and did not operate as an assignment of the amount. (See Tyler v. Gould, 48 N.Y., 682.) It appears that a portion only ($100) was actually paid on account thereof by the defendants, and nothing was done by them to constitute a payment of the balance, and it does not appear that they agreed or became liable to pay it to Bliss, or that he accepted them as his debtors for the amount, or that he ever discharged the plaintiff from liability therefor. Under such circumstances the referee properly refused to give a credit beyond the sum of $100.

There are no facts found to show that there was an accord and satisfaction of the plaintiff's claim; and as that was a matter of defence, it was incumbent on the defendants to establish it. Indeed, it is conceded that the costs required to be paid under the agreement set up were never, in fact, paid; and assuming that they were tendered, that fact was not equivalent to its execution. It was nevertheless, at most, a simple unexecuted accord, and was not a satisfaction. (See The Brooklyn Bank v.De Grauw, 23 Wend, 342, and cases cited; Day v. Roth,18 N Y, 448, 456.)

There is no exception raising a question as to the disallowance of any other specific credit; and a general exception to the conclusion of law that the plaintiff was entitled to recover the entire amount found due, does not permit or justify such an inquiry. We must, therefore, assume that the sum recovered was correct.

It is however insisted that William M. Bliss was the party in interest, and that the action cannot be maintained by the plaintiff. It is a sufficient answer to this claim to say that there are no facts found to warrant it. There is, on the contrary, an express finding that the defendants undertook, on their employment by the plaintiff, to collect the moneys for him and to account to him therefor, and that he is the sole party in interest; and if it be conceded that there is sufficient ground to show that there were other parties interested in the claims for, or on account of which the collections or any of them were made, it also appears they were so collected by the plaintiff in his own name by their authority and consent. He therefore stands in the relation of a trustee to them, and accountable as such to the extent of their interest. But so far as the defendants are concerned, he is the person with whom their contract was made and to whom they are legally accountable. The action was, therefore, properly brought in his name. (See section 113 of the Code.)

It follows, from the views above expressed, that there is no sufficient ground for the reversal of the judgment. It must, consequently, be affirmed with costs.

All concur.

Judgment affirmed.